Fenuel and Graham - [2008] FamCA 386

FAMILY COURT OF AUSTRALIA

FENUEL & GRAHAM

[2008] FamCA 386

FAMILY LAW – CHILDREN
FAMILY LAW – INJUNCTIONS
FAMILY LAW – CONTRAVENTIONS

Family Law Act 1975 (Cth)

APPLICANT:

Mr Fenuel

RESPONDENT:

Ms Graham

FILE NUMBER:

MLF

3707

2000

DATE DELIVERED:

22 April 2008

PLACE DELIVERED

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Carter J

HEARING DATES:

18 & 19 October 2007 and
by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirkham QC with Mr Thompson of Counsel

SOLICITOR FOR THE APPLICANT:

Gadens Lawyers

FOR THE RESPONDENT

In person

Orders

That for the personal protection of the children, namely, S born … November 1995; R born … July 1997; and J born … July 1999 (“the children”), the wife be and is hereby restrained by herself, her servants and agents from:
(a)approaching within 100 metres of the children or any of them;
(b)attending at or within 100 metres of the children’s place of residence at …, K, or any other place where they may reside;
(c)attending at or within 100 metres of any school or synagogue attended by the children or any of them;
(d)attending events or functions (including but not limited to sporting events, parent/teacher interviews and schools or extra-curricular activities) at which the children or any of them could be reasonably expected to be present;
(e)contacting, communicating with or attempting to contact or communicate with the children or any of them in any manner and without limiting the generality of this order the restraint extends to contact or communication by telephone, text message, sms message, written mail and electronic mail or other electronic communication
AND IT IS NOTED THAT this order is for the personal protection of the children and a breach of these orders or any of them attracts the power of arrest without warrant pursuant to s 68C of the Family Law Act 1975 (Cth) (“the Act”).
That for the personal protection of the husband, the wife be and is hereby restrained by herself, her servants and agents from:
(a)approaching within 100 metres of the husband;
(b)attending at or within 100 metres of the husband’s place of residence at …, K, or any other place where he may reside;
(c)attending at or within 100 metres of any place where the husband may be employed or any synagogue attended by the husband;
(d)contacting, communicating with or attempting to contact or communicate with the husband in any manner and without limiting the generality of this order the restraint extends to contact or communication by telephone, text message, sms message, written mail and electronic mail or other communication
AND IT IS NOTED THAT these orders are for the personal protection of the husband and a breach of these orders or any of them attracts the power of arrest without warrant pursuant to s 114AA of the Act.
That the wife’s Form 1A and Form 2A Responses both filed 18 September 2007 be dismissed.
That there is a determination that the wife has contravened par 1(a) of the orders made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fenuel and Graham

Details

AGLC: Fenuel and Graham [2008] FamCA 386
Case: [2008] FamCA 386
Decision Date: 22 April 2008

CaseChat Overview and Summary

In the matter of *Fenuel and Graham*, heard by Carter J, the court considered applications concerning contraventions of existing family law orders and the imposition of protective orders. The proceedings involved a husband and wife, with the primary dispute revolving around the wife's alleged breaches of orders designed for the personal protection of the parties' three children and the husband.

The legal issues before the court included whether the wife had contravened specific paragraphs of earlier orders made on 26 March 2007, particularly those relating to approaching, attending at, or contacting the children. The court was also required to determine the appropriate response to these contraventions, including the potential imposition of sanctions and the awarding of costs. Furthermore, the court had to consider the husband's applications for protective orders against the wife and the wife's own applications, which were to be dismissed.

Carter J determined that the wife had contravened paragraph 1(a) of the orders made on 26 March 2007 on multiple occasions. These contraventions included telephoning and speaking to one of the children, communicating with the child via email, and engaging in online communication through MySpace.com and msn.com. The court also found that the wife had contravened paragraph 1(a) by sending three emails to the husband on 18 September 2007. However, no sanction was imposed under s 112AD of the *Family Law Act 1975* (Cth) for this latter contravention. The court also made orders for the personal protection of the children and the husband, restraining the wife from approaching or contacting them within specified distances and by any means.

The court ordered that the wife contribute $2,000 towards the husband's costs incurred in the proceedings under Division 13A of Part VII of the Act. The wife's Form 1A and Form 2A Responses were dismissed. The husband's applications, including his contravention application, were also dismissed, save for any questions of costs. The matter was then removed from the list of cases awaiting determination.

Orders

Orders of the court

That for the personal protection of the children, namely, S born … November 1995; R born … July 1997; and J born … July 1999 (“the children”), the wife be and is hereby restrained by herself, her servants and agents from:

(a) approaching within 100 metres of the children or any of them;

(b) attending at or within 100 metres of the children’s place of residence at …, K, or any other place where they may reside;

(d) attending events or functions (including but not limited to sporting events, parent/teacher interviews and schools or extra-curricular activities) at which the children or any of them could be reasonably expected to be present;

(e) contacting, communicating with or attempting to contact or communicate with the children or any of them in any manner and without limiting the generality of this order the restraint extends to contact or communication by telephone, text message, sms message, written mail and electronic mail or other electronic communication

AND IT IS NOTED THAT this order is for the personal protection of the children and a breach of these orders or any of them attracts the power of arrest without warrant pursuant to s 68C of the Family Law Act 1975 (Cth) (“the Act”).

That for the personal protection of the husband, the wife be and is hereby restrained by herself, her servants and agents from:

(a) approaching within 100 metres of the husband;

(b) attending at or within 100 metres of the husband’s place of residence at …, K, or any other place where he may reside;

(c) attending at or within 100 metres of any place where the husband may be employed or any synagogue attended by the husband;

(d) contacting, communicating with or attempting to contact or communicate with the husband in any manner and without limiting the generality of this order the restraint extends to contact or communication by telephone, text message, sms message, written mail and electronic mail or other communication

AND IT IS NOTED THAT these orders are for the personal protection of the husband and a breach of these orders or any of them attracts the power of arrest without warrant pursuant to s 114AA of the Act.

That the wife’s Form 1A and Form 2A Responses both filed 18 September 2007 be dismissed.

That there is a determination that the wife has contravened par 1(a) of the orders made 26 March 2007 in that:

(a) she telephoned and spoke to the child, S, on 15 September 2007; and

(b) she communicated with the child, S, via email between 13 September 2007 and 17 September 2007; and

(c) she communicated with S “on line” using MySpace.com and msn.com (internet websites) at various times between 31 August 2007 and 18 September 2007.

That pursuant to s 70NEB(1)(f) of the Act the wife contribute the sum of $2,000 towards the husband’s costs incurred in the proceedings under Div 13A of Pt VII of the Act, with payment to be made within six months of this day.

That there is a determination that the wife has contravened par (1)(a) of the orders made 26 March 2007 in that she sent three emails to the husband on 18 September 2007.

That no sanction be imposed upon the wife under s 112AD of the Act for the contravention referred to in par 6 hereof.

Save as aforesaid and save for any questions of costs the followings applications filed by the husband be dismissed:

(a) his Form 1 and Form 2 Applications both filed 11 December 2006;

(b) his Application – Contravention filed 8 October 2007; and

Save as aforesaid, this matter be removed from the list of cases awaiting determination.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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